Speak Softly… and Carry a Nuclear Stick

The Teddy Roosevelt-Harry Reid analogy ain’t great, I know.  But the Senate majority leader sure does speak softly, and he’s armed (we think) with a pretty potent stick as the parties go to battle in the Senate over GOP filibusters of President Obama’s executive branch nominees.

There’s been ample excellent commentary and reporting on the coming week’s potential nuclear battle in the Senate.  I thought I’d add a few considerations to the mix.

First, I think it’s important to keep in mind that this week’s drama could take a while to play out.  If the parties do not resolve their differences while secluded in the Old Senate Chamber (where Rep. Prescott Brooks caned Sen. Charles Sumner in 1856), the Senate on Tuesday could begin a series of seven votes to invoke cloture on pending nominees, starting with the three nominees most at risk of falling short of the requisite sixty votes to break a GOP filibuster. One report suggests that Republicans may be trying to make a deal over the NLRB nominees, but without an agreement to confirm Richard Cordray to the Consumer Financial Protection Bureau, Democrats seem unlikely to fold.  Majority Leader Reid also seems unlikely to launch his version of the nuclear option before securing confirmation of the other pending nominees (in particular, those for Labor and EPA).  Moreover, if Reid’s procedural route includes a resolution to change Senate rules to reduce the cloture threshold to a majority vote for executive branch nominees, such motions are required to lay over on the calendar for a day.  That suggests any parliamentary fireworks might be delayed until later in the week.

Second, some close observers of the Senate argue that Democrats are making an unprecedented claim that only a simple majority is required to end debate and change Senate rules.  But versions of the claim have previously been made: Both Democratic (Hubert Humphrey) and Republican (Richard Nixon and Nelson Rockefeller) vice presidents offered roughly similar rulings in the 1950s, 60s, and 70s, albeit applying the argument to the start of a new Congress.  Moreover, a Senate majority in 1975 endorsed the view that a simple majority was sufficient to bring the Senate to a vote on a change in its rules at the start of a new Congress.  (That view stems from the rule making power granted to the House and Senate in Article 1, Section 5, of the Constitution, which is why some call the tactic the Constitutional option.)  True, the Senate later reversed itself as part of the deal that lowered the cloture threshold in 1975 for legislative measures to sixty senators, thereby reaffirming that the Senate’s formal rules should be applied in future efforts to change Senate rules (and that rule today requires a two-thirds vote to cut off debate on a rule change).  But depending on how Reid were to structure a nuclear motion, his parliamentary gambit could force the Senate to revisit its 1975 decision that endorsed the right of a Senate majority to bring the Senate to a vote on a rule change.  Some will likely argue that Reid is stretching the Constitutional option by applying it midstream, rather than at the outset of a new Congress.  I’ve never been convinced that the Constitutional option is limited to the opening of a new Congress.  The Constitution empowers the House and Senate to write their own rules; it does not limit that power to the opening of a Congresss.

Third, Reid’s claim last week that the Senate appears to have changed its procedures by majority vote 18 times since 1977 deserves a bit more scrutiny.  It is true that the Senate has moved by majority vote to change its procedures numerous times over the past several decades (and much earlier in its history as well).  Wawro and Schickler term these episodes reform-by-ruling—instances in which the Senate (either through a ruling from the chair or from a Senate vote to appeal a ruling) sets a new precedent that interprets existing Senate rules in a new way.  Most recently in 2011, Senate Democrats overturned a ruling of the chair, thereby establishing a new precedent that motions to suspend the rules to consider non-germane amendments post-cloture were dilatory and not allowed post-cloture.   In some ways, one set of motions that Reid might use in a nuclear gambit would be just another instance in which a Senate majority created a new precedent that applies existing rules in a new way.  In this case, a majority would vote to establish the precedent that a simple majority can cut off debate on a resolution to change the rules.  But in other ways, Reid’s threatened nuclear option is cut from a different cloth: None of the other successful examples of reform by ruling targeted the number of senators required to invoke cloture under the Senate’s cloture rule.  So, yes, the underlying principle in past episodes and in this week’s potential fracas is essentially the same. But if successful, Reid’s plan would secure a change in the required number of votes for cloture—something the Senate does not appear to have accomplished through precedent setting in the past.  (That said, as Steve Smith and I argued some time ago, the 1975 precedent set by the Senate to allow majority cloture was instrumental in getting the parties to the table to negotiate changes to the Senate’s Rule 22—even if that initial precedent was later reversed.)

Fourth, I think it’s important that Reid appears to be narrowly tailoring a rule change to apply only to executive branch nominees (and perhaps only after a nomination has been pending on the executive calendar for a set length of time).   When asked by CQ’s intrepid Senate reporter, Niels Lesniewski, about what Reid would do when contested judicial nominations came to the floor in a couple of weeks, Reid refused to expand the scope of conflict to judges: “This is focused very concisely…This is not about judges…This is about presidential executive nominees.” Why was Reid so adamant about limiting the reach of a rule change to executive branch nominees?  A narrowly tailored change might make his nuclear gambit look more like previous episodes of reform by ruling.  It might also make it easier to secure the support of 51 Democrats.

Finally, keep in mind that there’s an awful lot of uncertainty about what might (or might not) happen.  We don’t know precisely how Reid might decide to structure his parliamentary gambit.  (If you look up “Nuclear Option” in the Senate rulebook, you won’t find it!)  And, as Richard Beth importantly spells out in this essential CRS report, “It is not clear that any such form of proceeding can be proposed that would not require violations of existing rules in the process of changing them.”  That sentence always gives me pause.  And as Greg Koger points out, “punitive filibustering” by the minority in response to a majority going nuclear could be costly to the minority as well as the majority.  The Gang of 14 agreement in 2005 that defused the GOP’s nuclear threat, Koger reminds us, “spared both parties from trying to follow through on threats that would have been very costly to redeem and embarrassing to recant.”  As much as the “nuclear option” is bandied about in the press in recent years, the path to majority cloture for reforming Senate rules remains rocky.  But a determined and extremely frustrated majority might just do it.